9.  In September 1991, at the age of 16, the applicant became a member of the British Army, joining the Life Guards regiment of the Household Cavalry. In November 1992 the applicant was posted to the Household Cavalry Mounted Regiment (“the HCMR”) where he was taught to ride a horse. The applicant alleges that during riding lessons he became the target of bullying by other soldiers, including a lance-corporal. According to the applicant, towards the end of November 1992 the lance-corporal hit him on the side of the head with his fist, causing him to fall and strike his head on the ground. On 30 November 1992, several days after the attack, the applicant reported sick and told the medical officer that the injury to his face had been caused by falling off a horse. On 26 February 1993 the applicant, who alleges to have feared a further physical attack, went absent without leave. On 17 March 1993 he wrote to the commanding officer (“CO”) of the regiment (a lieutenant-colonel), stating, inter alia, that “[his] inability to express sufficient enthusiasm during training sometimes resulted in physical abuse by certain NCOs [non-commissioned officers]”, and asking to terminate his service. He received no reply to this letter.
10.  The applicant was arrested by the civilian police on 16 October 1996 and taken to the HCMR's barracks at Hyde Park, London. The following day he was charged with being absent without leave contrary to section 38(a) of the Army Act 1955. On 18 October 1996 he was remanded in close arrest by Major Kelly, acting as subordinate CO. On the “Eight Day Delay Report” dated 24 October 1996, the reason for the detention is stated: “Likely to absent himself ... – has already offered bribe to JNCO on guard to release him.” On 31 October 1996 he appeared before the CO and was remanded by him in close arrest for an abstract of evidence. He was subsequently released by the CO into open arrest on 11 November 1996. The CO remanded him for trial by district court martial on 13 March 1997.
11.  In a statement dated 4 November 1996 to the Ministry of Defence Police, the applicant stated that the attack by the lance-corporal had occurred in the week prior to his going absent without leave, while in a statement dated 29 January 1997 he stated that the attack occurred sometime in February 1993. The police found that the lance-corporal had left the army and took statements from other soldiers who had been on the same riding course as the applicant. They found that there was no evidence to support his complaint. The applicant subsequently signed a statement saying, inter alia: “I have come to the conclusion that I just want to get out of the army and get on with my life ... Even though this assault happened, I do not want the Ministry of Defence Police ... to take any further action concerning the incident.”
12.  Following the applicant's remand for trial, the CO appointed Captain A. as “defending officer”. Captain A. was an army officer with no legal training, serving as a troop commander with the HCMR. The applicant applied to the Army Criminal Legal Aid Authority (“the Legal Aid Authority”) for legal aid to enable him to be represented by a solicitor. On the application form he stated that his weekly income after deduction of tax, rent and national insurance was 158.13 pounds sterling (GBP), and that he had no savings or other property of value. The form was countersigned by his CO. By a letter dated 26 March 1997, the Legal Aid Authority replied that a charge of absence without leave did not normally warrant legal representation but that either the CO or the applicant should write setting out his reasons if he considered that, exceptionally, legal aid should be granted. The applicant's solicitor wrote to the Legal Aid Authority on 18 April 1997 pointing out that the applicant faced a custodial sentence and needed to be represented. The Legal Aid Authority offered the applicant legal aid subject to a down-payment of GBP 240 in a letter dated 21 April 1997. The Government maintain that he could have paid in ten weekly instalments of GBP 24 each, but this is disputed by the applicant. On 30 April 1997 the applicant's solicitor wrote asking the Legal Aid Authority to reconsider the down-payment condition, but on 2 May 1997, before the Legal Aid Authority had replied, the applicant refused the offer of legal aid and was not, therefore, represented by a solicitor at the court martial.
13.  Also on 2 May 1997, the applicant signed a document, addressed “to whom it may concern”, in which he made the following statement:
“This is to certify that I, 25009734 Tpr Morris D of The Life Guards no longer wish to be represented at my pending District Court Martial other than by my Defending Officer, Captain [A.].
I have made this decision of my own free will. I understand that all previous correspondence with regard to my application for legal representation will now be ignored.”
14.  The applicant's court martial took place at Chelsea Barracks on 28 May 1997. The court was composed as follows: a president, Lieutenant-Colonel A.D. Hall of the Corps of Royal Electrical and Mechanical Engineers, who was a permanent president of courts martial (appointed to his post in January 1997 and due to remain until his retirement in September 2001); Captain R. Reid of the Royal Army Medical Corps, Aldershot; Captain W.D. Perks of the Second Battalion, Royal Gloucestershire, Berkshire and Wiltshire Regiment (Volunteers), Reading; and a legally qualified civilian judge advocate (see paragraph 26 below). All three military officers were outside the command area in which the applicant was serving. The president worked from home when not attending court-martial hearings.
15.  Captain A. represented the applicant, who pleaded guilty to the charge of being absent without leave between 25 February 1993 and 16 October 1996. The applicant's letter of 17 March 1993 to his CO was handed to the court, but no other mention was made of the bullying allegedly suffered by him. The applicant was sentenced to dismissal from the army and nine months' detention.
16.  After the hearing, Captain A. erroneously advised the applicant that if he appealed against the sentence he risked the commencement date for his sentence being put back to the date of dismissal of the appeal. On 31 May 1997 the applicant instructed a solicitor to represent him. On 19 June 1997 the solicitor lodged a petition with the Defence Council in its role as the “reviewing authority” (see paragraph 29 below), relying on the facts that the applicant had had no legal representation before the court martial and that his allegations of assault were not presented to the court, either by way of a defence of duress (which applies when a person charged with a criminal offence can show that, at the relevant time, he reasonably believed that he would be killed or seriously injured if he did not commit the offence) or in mitigation of sentence. The petition asserted that it was unlikely that the defending officer understood that the applicant might have had a defence on the basis of duress and that the defending officer had indicated that he had been “ordered” not to allude to the allegations at the court martial without indicating who had so ordered him. It also mentioned instructions which the defending officer had given about what the applicant ought to do in the event that the court martial should, of its own volition, ask the applicant about the allegations which had been made. It also indicated that the defending officer had advised the applicant that, “if he appealed, his sentence might well be increased”. On the same day the petition was introduced, the solicitor wrote to Captain A. asking for his comments on it and reminding him that he was subject to the rules of client privilege and should not disclose details of his dealings with the applicant to any third party. Despite this, Captain A. provided a statement to the Defence Council, in which he said, inter alia:
“As [the applicant's] Troop Leader I was asked to represent him at Court Martial, this was the first Court Martial I have attended in any capacity. Although I have had experience in civil cases at both Magistrates' and Crown Courts. ...
[The applicant] had indicated to me that he had gone absent from the Army for more than one reason. As expressed in his letter of 17 March 1993. He was showing reservations about his enthusiasm, commitment and devotion to duty. ...
[T]he petition states that I assumed the petitioner had no choice but to plead guilty, as he had been Absent Without Leave. I was unaware that he could have entered a plea of not guilty to the charge on the basis of duress. [The applicant] and I did not discuss the allegations of bullying in any great detail. This was because these allegations had been withdrawn by him under interview by MOD Police.
[The applicant] indicated to me that he wanted to drop all the references to the violence by the NCO during his training. This was in order that the trial date would be set significantly earlier and that the trial would be substantially shorter. This led me to advise [the applicant] to plead guilty as charged, as I had felt that this gave him his best opportunity to be discharged from the Army at the earliest date which was, after all, his overall aim. ...
I discussed with the Adjutant my role as the Defending Officer. We talked about the procedural steps of the court martial and my conduct leading up to the trial. It was confirmed to me that a guilty plea would produce an earlier trial date than that of not guilty.
I advised [the applicant] that references to his allegations of bullying could prolong and complicate his court martial. The mention of bullying would be introduced as part of his letter to his commanding officer dated 17 March 1993, which he agreed could be put forward for the court as mitigation. [The applicant] agreed that he did not wish to answer questions about his previous allegations, which he had dropped.
I therefore advised him to refer such questions to me and I would state to the court that this was an avenue down which he did not wish to proceed. ...”
17.  The petition was refused by the reviewing authority on 14 July 1997, in the following terms:
“The Reviewing Authority has considered the petition submitted by your above-named client, and has denied it for the following reasons.
The down payment for Legal Aid was carefully calculated, and was well in line with the amount the petitioner would have had to pay under the civil system. The certificate signed by him shows clearly that he had decided not to proceed with his application for legal representation. We cannot accept that [the applicant] was in any way forced to accept this decision. He also appears to have been content to accept Captain [A.] as his defending officer.
The complaints about the petitioner being bullied were investigated by the SIB and the allegations could not be substantiated. Indeed it came to light during this investigation that the petitioner had told [another soldier] that he planned to go absent because he was merely tired of the training and the long hours being worked. In view of the SIB report, the Reviewing Authority must accept that the allegation that the petitioner was subjected to violence by a Non-Commissioned Officer cannot be substantiated, and cannot be regarded as a mitigating factor.
In considering your complaint that, had the petitioner been advised by a qualified solicitor, he would have been able to plead not guilty on the basis of duress, we had to rely on the advice given by the Judge Advocate General. He stated that a person is subject to duress when words or conduct from another person cause him to fear that he will be killed or seriously injured, if he does not commit the offence. Clearly, the petitioner could never have reasonably believed that he had cause to fear that he would be killed or seriously injured.
The Reviewing Authority notes that the petitioner had dropped his allegations of being subjected to violence by the time he appeared in Court. All Captain [A.] intended to do was to inform the Court that the petitioner did not wish to proceed with these allegations. In fact the Court was made aware of them because the letter from (sic) the Commanding Officer was read out to them.
We accept that Captain [A.] was mistaken in referring the petitioner to the booklet 'Appeals and Petitions after conviction by Army Court Martial', which was out of date after 1 April 1997. In addition the wrong paragraph was used in his advice to the petitioner. However as we have now received a petition, in spite of this mistaken advice, we believe that no harm has been done. ...”
18.  On 26 July 1997 the applicant lodged an application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court. Leave to appeal was refused by the single judge on 22 October 1997, on the grounds that the defence of duress had not been open to the applicant, that he had been properly advised to plead guilty, and that the sentence was not manifestly excessive.